The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge
Presently before the Court is Defendant Philadelphia Newspapers,
Inc.'s*fn1 Motion to Dismiss the Complaint Pursuant to Federal Rule of
Civil Procedure 12(b)(6).*fn2 For the following reasons, Defendant's
Motion will be granted.
On February 23, 2002, Defendant published an article in the
Philadelphia Inquirer, which was written by reporter Nora Koch.
The article discussed pro se Plaintiff, Richard Kreimer's attendance at a
Woodbury, New Jersey City Council meeting, and refers to Plaintiff as "a
drifter." (Ex. A to Mot. to Dismiss.) On December 11, 2003, Plaintiff
commenced this lawsuit by filing a Motion to Proceed in Forma Pauperis (Doc. No. 1). On December 16,
2003, Plaintiff filed the Complaint, alleging libel, slander, defamation,
and negligence in connection with Koch's article. (Doc. No. 3.) On March
8, 2004, Philadelphia Inquirer filed the instant Motion to Dismiss,
stating that Plaintiffs claim was barred by the running of the one-year
statute of limitations for defamation cases.
When considering a motion to dismiss a complaint for failure to state a
claim under Rule 12(b)(6), we must "accept as true the facts alleged in
the complaint and all reasonable inferences that can be drawn from them.
Dismissal under Rule 12(b)(6) . . . is limited to those instances
where it is certain that no relief could be granted under any set of
facts that could be proved." Markowitz v. Northeast Land Co.,
906 F.2d 100, 103 (3d Cir. 1990). For this reason, courts strongly
disfavor Rule 12(b)(6) motions. Melo-Sonics Corp. v. Cropp,
342 F.2d 856 (3d Cir. 1965); Kuromiya v. United States. 37 F. Supp.2d 717,
722 (E.D. Pa. 1999). We will only dismiss a complaint if'"it is
clear that no relief could be granted under any set of facts that could
be proved consistent with the allegations.'" H.J. Inc. v.
Northwestern Bell Tel. Co., 492 U.S. 229. 249-50 (1989) (quoting
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). In
considering a motion to dismiss, however, we need not assume the truth of
legal conclusions. Papasan v. Allain, 478 U.S. 265, 286 (1986).
Defendant asserts that Plaintiff's Complaint is facially deficient
because it was filed after the one-year statute of limitations for
defamation claims had run. We agree. Under Pennsylvania law, all
defamation claims must be commenced within one year. 42 PA. CONS. STAT.
ANN. § 5523(1).*fn3 Counts I and II of the Complaint allege that
Defendant is "liable for libel, slander, and defamation of character for
a[n] article about plaintiff on February 23, 2002 which said the
following, `Woodbury Loitering Richard Kreimer and
Drifter.'" (Compl., Count I at ¶ 4 (emphasis in original).)
However, as stated, Plaintiff did not commence this lawsuit until
December 11, 2003, more than nine months after the statute of limitations
had run. Accordingly, we will dismiss Plaintiffs defamation claims with
prejudice. "A court may adjudicate statute of limitations on a motion to
dismiss if the complaint reveals on its face that it has not been filed
within the statute of limitations." Estrada v. Trager, Civ.A.
No. 01-4669, 2002 WL 31053819 at *2 (E.D. Pa. Sept. 10, 2002) (citing
Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir.
In addition to finding that the Complaint runs afoul of the statute of
limitations, we also dismiss the Complaint as frivolous. Twenty-eight
U.S.C. § 1915 permits an indigent person to file a complaint in forma
pauperis, which waives the fees and costs of a civil lawsuit. "However,
`the district court has discretion under 28 U.S.C. § 1915(d) to
dismiss frivolous or malicious in forma pauperis complaints.'" Poles
v. Saint Joseph's Univ., Civ.A. No. 94-7034, 1995 WL 1501, *6 (E.D.
Pa. Mar. 1, 1995) (citing Wilson v. Rackmill, 878 F.2d 772, 774
(3d Cir. 1989)). Count III of the Complaint alleges claims for negligence
that are grounded in the same conduct as the claims for defamation.
(Compl., Count Three.) See Snee v. Carter-Wallace. Inc., Civ.A.
No. 00-1317, 2001 WL 849734, at *9 (E.D. Pa. July 2, 2001)
("[N]egligence claims predicated on the same facts alleged in a
defamation claim can only survive if the defamation claim survives.").
The article of which Plaintiff complains discusses a meeting of city
council and simply mentions Plaintiff, referring to him as a drifter.
This does not rise the to the level of actionable defamation.
Plaintiff's Complaint goes to great lengths to define the term
"drifter," then analogize the term "drifter" to the word "hobo" and
ultimately compare a "hobo" to a "vagrant." Based on the Plaintiff's
definition of "vagrant," the Complaint concludes that Defendant has
defamed Plaintiff's reputation because at the time the article was
published, Plaintiff was not homeless. (Compl. at ¶¶ 5-10.)
Plaintiff's tortured reasoning does not support a cause of action for
defamation. Under Pennsylvania law, a Plaintiff alleging defamation must
(1) the defamatory nature of the communication;
(2) publication by the defendant;
(3) the application of the communication to the
(4) a recipient's understanding of the
communication's defamatory meaning;
(5) a recipient's understanding that the
communication was intended to apply to
(6) special harm resulting to the plaintiff from
its publication; and
(7) abuse of a conditionally privileged occasion.
Fanelle v. Lojack Corp., Civ.A. No. 99-4294, 2000 WL
1801270, *2 (E.D. Pa. Dec. 7, 2000) (citing 42 PA. CONS. STAT. §
8343(a)). In the instant case, Plaintiff cannot establish the defamatory
nature of the communication. "It is for the court to determine whether
statements complained of by the plaintiff are capable of defamatory
meaning." Smith v. School Dist. of Phila., 112 F. Supp.2d 417,
429 (E.D. Pa. 2000) (quoting Wilson v. Slatalla, 970 F. Supp. 405 (E.D. Pa. 1997)). Expressions of opinions, that rise only to the
level of annoyance or embarrassment, do not provide a basis for a
defamation claim. Parano v. O'Connor, 641 A.2d 607, 574-75
(Pa. Super. 1994). In Parano, the court found that statements that
the plaintiff was "adversarial, less than helpful, and uncooperative"
were "not the sorts of injury that will support a defamation claim."
Id. at 575. In addition, the court in Smith held:
"While the Court acknowledges that a statement that plaintiff is `racist
and anti-Semitic,' if it was made, would be unflattering, annoying and
embarrassing, such a statement does not rise to the level of defamation
as a matter of law because it is merely non-fact based rhetoric."
Smith, 112 F. Supp.2d 417, 429 (E.D. Pa. 2000). See also
Kryeski v. Schott Glass Techns., Inc., 626 A.2d 595, 600-01
(Pa.Super. 1993) (statements that person was "crazy" and "emotionally
unstable" did not rise to level of defamation), appeal denied,
639 A.2d 29 (1994); Gordon v. Lancaster Osteopathic Hosp. Ass'n,
Inc., 489 A.2d 1364, 1368-69 (Pa.Super. 1985) (statements that
defendants lacked confidence in plaintiff's work and performance and
lacked trust in plaintiff were not defamatory). Even considering the fact
that Defendant disseminated the statement to a widespread audience, we
simply cannot conclude that Defendant's use of the term "drifter" rises
to the level of defamation contemplated by the Pennsylvania courts.
Mindful of the goal of § 1915(d), "to discourage the filing of, and
waste of judicial and private resources upon, baseless lawsuits that
paying litigants generally do not initiate because of the costs of
bringing suit," we will dismiss Plaintiff's Complaint as frivolous.
Poles, 1995 WL 91501, at *6 (citing Neitzke v.
Williams, 490 U.S. 319
For the foregoing reasons, we will grant Defendant's Motion to Dismiss. An appropriate Order follows.
AND NOW, this 27th day of May, 2004, upon consideration
of Defendant Philadelphia Newspapers, Inc.'s Motion to Dismiss the
Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc.
No. 5), it is ORDERED that ...